United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
before the Court are many motions filed by Barnes attacking
the April 12, 2017 Memorandum and Order and April 24, 2017
Amended Judgement (Docs. 29 & 35) in this case dismissing his
habeas corpus petition with prejudice as untimely (Docs. 36,
37, 38, 39 & 40). Based on the following, the Court DENIES
was convicted of first degree murder at a bench trial in the
Madison County, Illinois Circuit Court in October 2010. He
was sentenced to forty-five years imprisonment. In July 2016,
Barnes filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, alleging, in short, that: his
underlying conviction is not sound because Illinois law was,
or is, contrary to federal law regarding the right to bear
arms; and, based on his interpretations of the law, the facts
presented during the bench trial did not support a conviction
beyond a reasonable doubt. On April 12, 2017, the Court
entered a Memorandum and Order dismissing his petition as
untimely and declining to issue a certificate of
appealability (Doc. 29) and Judgment reflecting the same was
entered (Doc. 30). Thereafter, the Court granted
respondent's motion to alter judgment finding that the
dismissal should be with prejudice as the petition was found
to be untimely (Doc. 34). On April 24, 2017, the Amended
Judgment was entered reflecting the same (Doc. 35).
Seventh Circuit has held that a motion challenging the merits
of a district court order will automatically be considered as
having been filed pursuant to either Rule 59(e) or Rule
60(b). See, e.g., Mares v. Busby, 34 F.3d 533, 535
(7th Cir. 1994). Different time-tables govern these motions.
Different standards also apply. Rule 59(e) permits a court to
amend a judgment only if the movant demonstrates a manifest
error of law or fact or presents newly discovered evidence
that was not previously available. See, e.g., Sigsworth
v. City of Aurora, 487 F.3d 506, 511-12 (7th Cir. 2007).
Rule 60(b) permits a court to relieve a party from an order
or judgment based on such grounds as mistake, surprise or
excusable neglect by the movant; fraud or misconduct by the
opposing party; a judgment that is void or has been
discharged; or newly discovered evidence that could not have
been discovered within the 28-day deadline for filing a Rule
59(b) motion. However, the reasons offered by a movant for
setting aside a judgment under Rule 60(b) must be something
that could not have been employed to obtain a reversal by
direct appeal. See, e.g., Bell v. Eastman Kodak Co.,
214 F.3d 798, 801 (7th Cir. 2000).
both Rules 59(e) and 60(b) have similar goals of erasing the
finality of a judgment and permitting further proceedings,
Rule 59(e) generally requires a lower threshold of proof than
does Rule 60(b). See Helm v. Resolution Trust Corp.,
43 F.3d 1163, 1166 (7th Cir. 1995); see also Ball v. City
of Chicago, 2 F.3d 752, 760 (7th Cir. 1993)
(distinguishing the “exacting standard” of Rule
60(b) from the “more liberal standard” of Rule
59(e)). The purpose of a motion to alter or amend judgment
under Rule 59(e) is to ask the court to reconsider matters
“properly encompassed in a decision on the
merits.” Osterneck v. Ernst & Whinney, 489
U.S. 169, 174, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989).
“A Rule 59(e)motion will be successful only where the
movant clearly establishes: (1) that the court committed a
manifest error of law or fact, or (2) that newly discovered
evidence precluded entry of judgment.” Cincinnati
Life Ins. Co. v. Beyrer, 722 F.3d 939, 954 (7th Cir.
2013) (citation and quotation marks omitted). Relief pursuant
to a Rule 59(e) motion to alter or amend is an
“extraordinary remed[y] reserved for the exceptional
case.” Foster v. DeLuca, 545 F.3d 582, 584
(7th Cir. 2008). A Rule 59(e) motion may be used “to
draw the district court's attention to a manifest error
of law or fact or to newly discovered evidence.”
United States v. Resnick, 594 F.3d 562, 568 (7th
Cir. 2010). A manifest error “is not demonstrated by
the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize
controlling precedent.” Metropolitan Life Ins.
Co., 224 F.3d 601, 606 (7th Cir. 2000) (citation and
quotation marks omitted). Furthermore, “a Rule 59(e)
motion is not an opportunity to relitigate motions or present
arguments, issues, or facts that could and should have been
Barnes' motions were filed within the 28 day window and
Rule 59(e) governs. The Court finds that Barnes is not
entitled to relief under the Rule 59(e) standard. After
reviewing the record again, the Court finds that Barnes
identifies no manifest error of law, newly discovered
evidence, fraud, mistake, or excusable neglect that dictates
a different result. His motions merely take umbrage with the
Court's previous ruling and rehashes old arguments that
have been addressed by the Court. In rendering this Order and
the Memorandum and Order dismissing with prejudice
Barnes' habeas corpus petition as untimely, the Court
examined the record and the case law submitted by the parties
and remains convinced of the correctness of its position.
Thus, the Court denies Barnes' motions.
the Court DENIES all of Barnes' post judgment motions
(Docs. 36, 37, 38, 39, 40 & 41).
petitioner wishes to appeal the dismissal of the action or
this order, his notice of appeal must be filed with this
court within thirty days of the date of this order. Fed. R.
App. P. 4(a)(4). A motion for leave to appeal in forma
pauperis (“IFP”) should set forth the issues
petitioner plans to present on appeal. See Fed. R.
App. P. 24(a)(1)(C). If petitioner does choose to appeal and
is allowed to proceed IFP, he will be liable for a portion of
the $505.00 appellate filing fee (the amount to be determined
based on his prison trust fund account records for the past
six months) irrespective of the outcome of the appeal.
See Fed. R. App. P. 3(e); 28 U.S.C. §
1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724,
725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d
857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133
F.3d 464, 467 (7th Cir. 1998). It is not necessary for
petitioner to obtain a certificate of appealability in an
appeal from this petition brought under § 2241.
Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir.
 These motions were filed from April
26, 2017 to May 22, ...